Medway Council (20 005 315)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 30 Nov 2020

The Ombudsman's final decision:

Summary: The Ombudsman has identified fault by the Council resulting in an injustice about information it gave to Ms L. In addition, Ms L also complains about the Council’s response to her request for an investigation into a dog breeder and the evidence she supplied in support of her concerns. However, the Ombudsman does not consider this matter has caused the complainant a personal and significant injustice. We have asked the Council to provide a remedy for the injustice of providing incorrect information.

The complaint

  1. The complainant, who I refer to as Ms L, is making a complaint about the Council’s response to her concerns about a dog breeder. Specifically, Ms L says:
  • She bought two dogs in 2014 from a breeder within the Council’s area which allegedly had serious health problems at the point of sale.
  • The Council has not investigated concerns the dog breeder is allegedly breeding more than legal guidelines and doing so without regard for the health and wellbeing of the dogs bred.
  • The Council wrongly told her that it could not investigate these matters since the breeder’s area did not fall within its geographical area.
  • The Council would not consider the evidence she supplied about poor and excessive breeding before 2018 following the introduction of new breeding legislation on licencing.
  1. Ms L says the Council’s inaction has meant her own and other’s dogs are suffering because of the breeder. Further, Ms L says the Council misadvised her and the breeder’s actions would have been stopped had the Council dealt with her concerns properly. Ms L wants the Council to investigate into the actions of the breeder.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended).
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault, or the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended).
  4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  5. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).

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How I considered this complaint

  1. I have reviewed Ms L’s complaint to the Ombudsman and Council. I have also considered the responses of the Council and applicable legislation and policies. Both the Council and Ms L received an opportunity to comment on a draft of my decision before I reached a final view.

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What I found

Background

  1. The Animal Welfare (Licensing of Activities Involving Animals) Regulations 2018 (the Regulations) brought wide-ranging changes to licencing and local authority compliance for anyone selling dogs as a business. The aim of the changes is to improve animal welfare standards in the UK, with particular rules coming into force for people who breed and sell puppies for profit. The Regulations are relevant to anyone who breeds and sells three or more litters within any twelve-month period. If they do so and make or intend to make a profit or commercial gain, then this is classed as a business and they need a licence.
  2. The Council will investigate complaints of welfare issues about a breeder that is already licenced as these issues can be enforced under the licence conditions. Further, it will also investigate complaints about allegations that a person is breeding without a licence, should they fall within scope of the Regulations. Issues relating solely to animal welfare would not be investigated by the Council and a complainant would be advised to contact the RSPCA.

What happened

  1. In November 2014, Ms L bought two dogs from a breeder located in the Council’s area. Ms L alleges the breeder sold the dogs with health problems.
  2. Between 2015 and 2019, Ms L brought her concerns to the Council. She said the breeder was breeding in excess of legal guidelines and without regard for the health and wellbeing of the dogs being bred. Ms L asked the Council to investigate the breeder and provided evidence to support her concerns.
  3. The Council told Ms L that it could not conduct an inquiry into the breeder because their location was not within its geographical area. However, in January 2020, the Council apologised to Ms L for providing misleading information about its jurisdiction since the breeder’s location was within its area. Further, the Council told Ms L it was investigating her concerns to find out whether the breeder required a licence under the Regulations.
  4. In March 2020, the Council wrote to Ms L to tell her about the relatively new Regulations about dog breeding and licencing. Further, it advised the remit of its inquiry would be limited to finding out whether the breeder required a licence or were operating in a way which was in breach of a licence. Separately, the Council told Ms L it could not consider any evidence from her before the date of the Regulations coming into effect.
  5. In September 2020, the Council told Ms L that it was satisfied that a criminal offence had not been committed at the breeder’s property. It had given the breeder verbal advice was provided about licence requirements. Dissatisfied with the Council’s response, Ms L then brought her complaint to the Ombudsman.

My findings

Purchase of dogs

  1. Ms L’s complaint about her buying dogs from a breeder in 2014 which allegedly had health difficulties is not an administrative function of the Council. Therefore, though I am sympathetic towards Ms L’s cause of complaint, the restriction I set out at paragraph four applies and I have no jurisdiction to investigate.

Incorrect advice by the Council

  1. I recognise that Ms L registered her concerns with the Council between 2015 and 2019 and was told the breeder was not within its geographical area. The Council has admitted this advice to Ms L was wrong and so the Council was clearly at fault. The Council providing wrong advice to Ms L over a prolonged period would have resulted in a degree of confusion. Further it caused Ms L time and trouble in continuing her complaint longer than was necessary. I am therefore recommending a small financial remedy to Ms L for fault resulting in an injustice, as set out below.

Requests for an investigation

  1. In each case, I must assess whether the complainant has suffered a significant and personal injustice as a result of any fault. This means I must decide whether Ms L has suffered serious loss, harm or distress because of the Council’s initial failure to conduct an investigation.
  2. Ms L has raised concerns with the Council which she is within her rights to do, but in my view, the outcome of any investigation has no personal bearing or effect on her. Ms L has said she is using her enquiry as a means to raise a wider issue about breeding in the Council’s locality in general. Further, she said the outcome of an investigation would have supported her civil claim against the breeder. On that basis, I propose using my discretion not to investigate how the Council responded to Ms L’s request for an investigation or the evidence she supplied about the breeding methods she describes. This is because public interest concerns are better raised with Ms L’s Member of Parliament or local councillor than the Ombudsman. Further, though an investigation may or may not have been beneficial to Ms L’s civil case against the breeder, as said, this matter is not an administrative function of the Council.
  3. In any event, the Council has investigated Ms L’s concerns in line with its duties under the Regulations (see paragraph 10). I recognise Ms L is unhappy with the outcome of this. However, I have not found fault in how the Council conducted its enquiries or applied the Regulations and so I cannot question the merits of a properly made decision.

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Agreed action

  1. To remedy the injustice of Ms L’s time and trouble in continuing her complaint about the Council’s jurisdiction to look into her concerns identified above, I recommend within one months of date of my final decision, the Council should pay Ms L £100.00. The Council has accepted my findings and recommendations.

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Final decision

  1. The Council were at fault by providing wrong advice to Ms L. As to the Council’s response to Ms L’s request for investigation, I do not consider Ms L has a suffered a personal and significant injustice. The Ombudsman also has no jurisdiction to investigate Ms L’s buying of dogs she considers had serious health problems at the point of sale.

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Investigator's decision on behalf of the Ombudsman

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